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CASE NO.: Appeal (civil)  4766-4768 of 1998

PETITIONER: M/s ICPA Health Products (P) Ltd.

RESPONDENT: Commissioner of Central Excise, Vadodara

DATE OF JUDGMENT: 20/04/2004

BENCH: S. N. VARIAVA & H. K. SEMA.

JUDGMENT: J U D G M E N T

S. N. VARIAVA, J.

       These Appeals are against the Judgment of the Customs, Excise  and Gold (Control) Appellate Tribunal (for short CEGAT) dated 1st May,  1998.         Briefly stated the facts are as follows: The Appellants manufacture, amongst other things, Hexiprep,  Hexiscrub (Surgiscrub) and Haxiaque.  They classified these items  under Tariff Item 3003.10 and paid duty under Notification No. 29/88- CE dated 1st March, 1988.   Eight show-cause-notices were issued to  them calling upon them to show cause as to why the products should  not be classified under Tariff Item 38.08.  The Adjudicating Authority  then upheld the classification as proposed in the show-cause-notices.   The Appeal filed by the Appellants to CEGAT has been dismissed by  the impugned Judgment.         The three products of the Appellants were examined by the  Chemical Examiner who opined that they contained chlorhexdine  gluconate solution BP, which had therapeutic properties.  The Chemical  Examiner also opined that they were used as disinfectants and were  thus covered by Tariff Entry 38.08.      The labels of the three products describe them as "superior  surgical microbicidal solution".  It is admitted that Hexiprep is used to  paint the skin as required to disinfect the skin before surgery.  It is for  rapid skin disinfection prior to surgery.  Hexiaque is used as a skin  disinfectant to paint the skin before surgery and as a wound  disinfectant.  It is described as a cleanser and is used for cleansing of  wounds and abrasions and minor cuts.  Hexiscrub is for use on hands  and forearms of Surgeons for rapid hand disinfection prior to surgery.      At this stage, the two Tariff Items may be set out.   Tariff Item  3003.10 reads as follows: "3003.10 - Patent or proprietary medicaments, other than  those medicaments which are exclusively  Ayurvedic, Unani, Siddha, Homoeopathic or  Bio-chemic."

Tariff Item No. 38.08 reads as follows:

"38.08 - Insecticides, rodenticides, fungicides, herbicides,  anti-sprouting products and plant-growth  regulators, disinfectants and similar products."

CEGAT has held that the Appellants’ products are disinfectants and are  therefore covered under Tariff Item 38.08.  However, Chapter Note  1(c) of Chapter 38, in which Tariff Item 38.08 falls, indicates that the  Chapter does not apply to "Medicaments".  Chapter Note 2(i) to  Chapter 30 defines "Medicaments" as follows: " ’Medicaments’ means goods (other than foods or

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beverages such as dietetic, diabetic or fortified foods, tonic  beverages) not falling within heading No. 30.02 or 30.04  which are either :-

(a)     products comprising two or more constituents which  have been mixed or compounded together for  therapeutic or prophylactic uses; or  (b)     unmixed products suitable for such uses put up in  measured doses or in packings for retail sale or for  use in hospitals."

Thus, if a product comprises of two or more constituents which have  been mixed together for therapeutic or prophylactic uses, then it  would be a medicament.  As stated above, the Appellants’ products  were examined by the Chemical Examiner who has opined that these  products have therapeutic properties.    Also admittedly these products  are used for disinfecting the skin prior to surgery.  As per Concise  Oxford Dictionary, 9th Edition, the term "prophylactic" would mean  "intending to prevent diseases, a preventive medicine or course of  action".  It is clear that the Appellants’ products are used as a cleanser  for cleaning of wounds and abrasions and minor cuts and to disinfect  the skin prior to surgery.  They therefore also have prophylactic uses.   As the products have therapeutic properties and prophylactic uses they  are Medicament falling under Chapter 30.  As they fall under Chapter  30 by virtue of Note 1(c) to Chapter 38, they do not fall within Chapter  38.  It will therefore have to be held that the products cannot be  classified under Tariff Item 38.08.  In this view of the matter, the  impugned Judgment cannot be sustained and is accordingly set aside.   It is held that the Appellants’ products will be classifiable under Tariff  Item 3003.10.           The Appeals are accordingly allowed.  There will be no order as  to costs.